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Tuesday, October 17, 2017

Conason: Do we need some kind of whistleblower protection for employees of the intelligence community, whether they’re contractors or government employees?

Wyden: Well, I have been a very strong supporter of whistleblower protections, and fortunately late last year I was able to derail legislation that would have dramatically harmed both whistleblowers and the public’s right to know. In the Intelligence Committee, legislation was advanced to deal with what the sponsors call leaks — and I’m against leaks like everyone else — but this legislation was so broad it would have done extensive damage to whistleblowers in particular. It would have, for example, denied whistleblowers their pension rights without due process, and it would have made it harder for the press to even get non-classified information from people who had previously been spokespersons in the executive branch — and I was the only person on the Intelligence Committee who opposed the bill. When it came out to the floor of the Senate, I put a hold on the bill. And then as Americans began to see how flawed the legislation was, it was just eviscerated and all of the anti-whistleblower provisions and the provisions that would have harmed the public’s right to know were struck. I consider this one of the big efforts of the last few years for our side, you know, really putting points up on the board for the cause of openness and transparency in intelligence policy as protecting whistleblowers.

Conason: If somebody like Snowden…came to you and said, “Senator, I don’t want to flee the country. I want to reveal this information. I think it’s in the national interest,” what would you have done?

Wyden: I can’t comment on something like that, Joe, but I could tell you that, of course, I was already aware of the fact that millions and millions of records were being collected on law-abiding people. And I had spent all that time dealing with the fact that the head of the NSA had said, “we don’t collect any data at all,” and I kept trying to pin that down because, again, it just cried out for follow-up. We weren’t able to get answers, and that’s why I notified [Director of National Intelligence] General [James] Clapper  the day before the public hearing, that I was going to ask him on the record to respond… He had said repeatedly that they don’t collect data. We were very troubled by all those comments because they were in a public forum…So I think I’ll leave it at that. I would always advise someone not to breach the law, but I can’t comment on that any further.

Conason: Do you know whether the government is storing all telephone and email information, not just metadata?  Are you aware of what the configurations of the data storage are that the government’s engaged in now?

Wyden: I know a substantial amount with respect to data storage, but I can’t get into those kinds of issues. The NSA had made public statements that they keep records. I believe it’s for five years… I want to go back and look at their precise statement, but I believe they have said that they keep the phone metadata for five years.

Conason: Well, we know they’re looking at emails, too, and the question is [whether they’ve been] storing emails.

Wyden: Well, there was an important development with respect to emails on that. This has now been declassified, but Senator Udall and I pushed very hard inside the Intelligence Committee to make the case that the bulk collection of the email records invaded people’s privacy and was not effectual. And the Obama administration a few weeks ago said that they had closed the program down for what they called operational reasons, and Senator Udall and I pointed out that we had spent a lot of time, and I believe the fact that two members of the committee made it clear that they were going to be relentless about exposing both the problems for Americans’ privacy rights and the ineffective nature of the program was the real reason it was closed down.

Conason: Would you have any reason to believe that NSA has monitored any members of Congress or the Senate?

Wyden: I have no reason to believe that any member of Congress has been monitored…Certainly members of Congress are going to be in the phone metadata. I mean, the question is, why wouldn’t they be? I guess the question is what monitoring means, but members of Congress and everyone else, their phone metadata, who they called, when they called, where they called from, is part of this program, and experts call it a human relations database. Some people say, “Well, nobody’s listening to my conversation, so what do I care that the government has these records?” Well, you learn an enormous amount about people from learning who they called, where they called from, and when they called. If somebody calls a psychiatrist a few times in 48 hours, you know, a couple of times after midnight, you learn a lot about that person — and that’s why it’s so important that there be a connection to terror here, rather than vacuuming up millions and millions of phone records.

Conason: How do you feel about the FISA court process itself, specifically the process for appointing FISA judges? Should that process be opened up to greater scrutiny?

Wyden: I think the FISA court is an anachronistic court that needs significant reforms. I mean, you know, its rulings of course are secret. They have been issuing extraordinarily broad rulings including the mass surveillance of law-abiding Americans… I don’t know of any other court in the country that strays this far from what has been our judicial system for literally centuries. I’ve been pushing very hard to get the legal analysis behind their rulings made public…In 2009 I actually got a written commitment from Obama administration intelligence officials that they would begin to start declassifying… FISA court decisions, and over these years — more than four — not a single opinion has been released.

Conason: Our readers wonder what is the real attitude of the president and his administration on this issue? Is the president sincerely interested in reform here, or do you feel that they’re going to resist every real effort at reform right now?

Wyden: Well, you know, the president has told me personally that he wants to have a debate about reforms. I will tell you my gut feeling is that the administration is looking of their own volition at reforms in the bulk phone-records collection area…What I’ve been trying to do, in my discussions with the Obama administration, is to make the case, particularly with respect to leaders in the intelligence community, just how far off the rails this has gone. You’ve had prominent intelligence officials not just keep the American people in the dark, but they’ve actually misled the American people….Intelligence officials at the highest level have to be straight with the American people and with the Congress, and too often that has not been the case.

I mean, they show up at congressional hearings and they say that the phone records program is like a grand jury subpoena kind of process. I don’t know of grand jury proceedings that, on an ongoing basis, authorize the collection of millions and millions of phone records. So yesterday [during a speech at the Center for American Progress], I said, “I’m sure we’ve got some lawyers here. If any of you want to come up after the talk, and tell me about any grand jury proceedings that on an ongoing basis authorize the collection of millions and millions of phone records of law-abiding Americans, come on up.”  I was not exactly swarmed in the process. [Laughter.]

You can read Joe Conason’s previous interview with Senator Wyden here.

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